Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from the installation of antennas and transmission equipment in an apartment complex which purportedly caused Plaintiffs Oliver Kabilka and Phillip Kabilka to suffer headaches, dizziness, fatigue and difficulty falling or staying asleep.   

Plaintiffs are tenants in an apartment complex located at 2700-2800 Neilson Way, Santa Monica, California.  Defendant American Towers, LLC owns and/or operates the apartment building.  American Towers contracted with Defendant Starry Inc. to install antennas and transmission equipment on the rooftop of the apartment building.  Starry Inc. and Does 1-10 are alleged to operate, service and/or maintain the equipment.  Plaintiffs filed an amendment to the complaint identifying Defendant GTP Structures I, LLC (“GTP”) as Doe 1. 

Plaintiffs allege a single claim for negligence.  They allege that “Defendants and each of them were negligent by acting and/or failing to act in the installation, maintenance and/or operation of the above-referenced rooftop equipment, which has been harmful to the health of, and has been offensive to the senses of, the Plaintiffs.”  (Compl. ¶19.) 

This hearing is on GTP’s demurrer.  GTP argues that Plaintiffs’ sole claim for negligence fails because Plaintiffs have made no allegations that would support a finding that GTP owed any duty to Plaintiffs.  There was no opposition filed as of the posting of this tentative ruling.         

MEET AND CONFER 

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (Code Civ. Proc. § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)  GTP submits the Declaration of Amin Al-Sarraf, which shows the parties complied with the meet and confer requirements of §430.41.    

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law.  (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  

 

DISCUSSION 

GTP argues that Plaintiffs’ sole claim for negligence fails because Plaintiffs did not allege facts to support a finding of duty.  The Court agrees. 

To establish a cause of action for negligence, a plaintiff must allege facts showing a legal duty to use due care, breach of the duty, causation and damages.  (Colonial Van & Storage Inc. v. Superior Court (2022) 76 Cal.App.5th 487, 496.)  As to the first element, a plaintiff must include foundational facts “showing the existence of a legal duty of care.”  (Roy Supply Inc. v. Wells Fargo Bank (1995) 39 Cal.App.4th 1051, 1076; see also Peter W. v. San Francisco Unif. Sch. Dist. (1976) 60 Cal.App.3d 814, 820 (complaints that lack facts to show that a duty of care was owed are insufficient).)   

Here, Plaintiffs have not alleged that GTP owed them a duty of care.  They only allege facts related to a purported breach and resulting harm, i.e., that “Defendants … were negligent by acting or failing to act in the installation, maintenance and operation of the above-referenced rooftop equipment, which has been harmful to the health of, and has been offensive to the senses of, the Plaintiffs.”  (Compl. ¶19.)  But that allegation does not show or establish that GTP owed Plaintiffs a duty of care.  Because Plaintiffs have not alleged any duty on the part of GTP, their negligence claim fails as a matter of law.   

CONCLUSION 

For the foregoing reasons, the Court sustains GTP’s demurrer with 20 days’ leave to amend.   

 

DATED:  February 1, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court